92 Decision Citation: BVA 92-21602
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-01 014 ) DATE
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THE ISSUES
1. Entitlement to service connection for disorders of the
back and ankles, as secondary to service-connected bilateral
weak feet.
2. Entitlement to an increased evaluation for a bilateral
foot disorder (termed as "weak feet"), currently evaluated
as 30 percent disabling.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Nickie Athanason-Dymersky, Associate Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(hereinafter Board) on appeal from a rating decision of
July 6, 1991, from the Department of Veterans Affairs
(hereinafter VA), Providence, Rhode Island, Regional Office
(hereinafter RO). The appellant had active service from
April 1944 until August 1946. A notice of disagreement was
received on August 16, 1991. The statement of the case was
issued on September 17, 1991. The substantive appeal was
received on September 25, 1991. The appellant presented
testimony before a RO hearing officer on November 27, 1991.
The hearing officer's decision was rendered on December 4,
1991. A supplemental statement of the case was issued on
December 4, 1991. The appeal was received at the Board on
February 27, 1992, and docketed at the Board on March 2,
1992. The veteran is unrepresented in his appeal. The case
is now ready for appellate review.
REMAND
The Board notes that the veteran has not been afforded a VA
compensation examination for several years.
The VA has the duty to assist the appellant in the
development of facts pertinent to his claim. 38 U.S.C.
§ 5107(a) (1992); 38 C.F.R. § 3.103(a) (1991). The United
States Court of Veterans Appeals has held that the duty to
assist the appellant in obtaining and developing available
facts and evidence to support his claim includes obtaining
VA medical examinations. Littke v. Derwinski, 1 Vet.App. 90
(1990); Akles v. Derwinski, 1 Vet.App. 118 (1991).
The Board further notes that in the appellant's testimony
given before the RO hearing officer on November 27, 1991, he
mentions on page 3 of the transcript that he has a future
appointment with a private physician (November 29, 1991), to
check his feet. However, we note that this medical report
is not part of the claims folder. There are only private
medical reports dating from July through September 1991 of
record.
The statutory duty to assist includes obtaining private
medical records. Ohland v. Derwinski, 1 Vet.App. 147
(1991); Sanders v. Derwinski, 1 Vet.App. 88 (1990). Thus,
the Board believes that the RO should obtain the specific
private medical report as referred to by the appellant in
his oral testimony given in November 1991.
Additionally, the Board notes that the appellant applied for
vocational rehabilitation benefits on June 20, 1989.
38 U.S.C. Chapter 31 (1992). It would be useful for the
Board to review the Chapter 31 file. Therefore, the RO
should associate it with the claims folder.
Under the circumstances of this case, the Board is of the
opinion that more information is needed. Therefore, this
case is REMANDED to the RO for the following action:
1. The RO should schedule the appellant
for a special VA orthopedic examination
to determine the current nature and
extent of his bilateral foot disability.
In addition, the physician should
ascertain if the appellant has a back
and/or ankle disorder and, if so, a
medical opinion should be rendered
whether either disorder is due to his
service-connected weak feet. The
examiner should provide a report
reflecting his or her findings, and the
basis for all medical conclusions
reached. The examiner's report should
contain details that reflect any
limitation of motion of the appellant's
feet, back, and ankles. All indicated
special studies and tests should be
performed, including X-rays. The range
of motion analyses should record any
limitation of motion in degree figures.
Clear summary diagnoses should then be
provided. The orthopedist should review
the entire claims folder prior to his or
her examination of the appellant.
2. After obtaining the appropriate
authorization form signed by the
appellant, the RO should recontact the
claimant's private physician, Angelo J.
Bigelli, D.P.M., at 464 Smithfield Road,
North Providence, Rhode Island 02904.
Dr. Bigelli should be specifically
requested to supply a copy of his medical
treatment report of the appellant
conducted on November 29, 1991, and any
other documentation regarding treatment
for periods other than those already of
record such as July through September
1991. Once obtained, these medical
reports should then be associated with
the claims folder.
3. The RO should locate and attach the
appellant's Chapter 31 vocational
rehabilitation file to the claims folder.
Following the completion of the above actions, the RO should
consider whether the appellant's claims may now be granted.
If the determinations remain adverse to the appellant, he
should be provided with a supplemental statement of the
case, containing a recitation of the pertinent evidence, the
applicable law and regulations, and the reasons and bases
for the decision. Thereafter, they should be afforded the
opportunity to respond to the supplemental statement of the
case prior to the return of the case to the Board for review.
The purpose of this REMAND is to obtain clarifying medical
information and afford due process of law to the appellant.
The Board intimates no final disposition by this action.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
E. M. KRENZER
C. D. ROMO
38 U.S.C.A § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b))